Miranda at risk

From today’s editorials: Another Supreme Court ruling narrows the protections of vital constitututional rights. You now have to speak up to protect your right to remain silent.

Oh, for the days. Here was a conservative Supreme Court, with William Rehnquist, ever the hard-liner, as chief justice, reconsidering the landmark Miranda decision a decade ago.

“We hold that Miranda, being a constitutional decision of this Court, may not be … overruled by an act of Congress, and we decline to overrule Miranda ourselves,” Justice Rehnquist wrote 10 years ago this month.

Whittling away at Miranda rights, a cornerstone of American justice since 1966, has proved to be another matter entirely.

An even more conservative court did just that again Monday, in a 5-4 ruling that put an undue burden on criminal suspects. The court ruled that the right to remain silent, to avoid saying anything potentially incriminating, applies only to those assertive and sophisticated enough to speak up to specifically invoke it.

The result is that a man named Van Chester Thompkins, accused of a fatal shooting a decade ago, can be prosecuted based upon his answer to a question he was asked almost three hours into a police interrogation despite never specifically waiving his Miranda rights.

“Do you pray to God to forgive you for shooting that boy down?” an officer asked him.

By answering yes, Mr. Thompkins was convicted of murder in a case that was struck down by a higher court but might be pursued anew.

To Justice Anthony Kennedy, nothing has really changed.

“A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police,’’ he wrote in the majority opinion.

But are statements like Mr. Thompkins’ indeed uncoerced?

And how, in the absence of any statement that a suspect understands those rights, so important to the poor and the uneducated, can the court make that assumption?

A justice who concedes, as Justice Kennedy does, that “some language in Miranda could be read to indicate that waivers are difficult to establish absent an explicit written waiver or a formal, express oral statement,” should be more cautious.

The court has further narrowed the rights based upon the Constitution’s guarantee that the government may not compel a person ‘‘in any criminal case to be a witness against himself.’’

In February, the court ruled that police can again attempt to interrogate suspects who specifically invoke their Miranda rights. All they have to do is wait 14 days. That undermined a 1981 ruling which said once a suspect asked for a lawyer under Miranda, questioning could not resume. The same day, the court said it was OK if police informed suspects of their right to consult a lawyer but failed to tell them that they had a right to have the lawyer present when they were questioned.

What’s next?

How much longer will the court decline to overturn Miranda? Until there’s nothing left to overturn?